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the mortgagor: in this case, the land which is so put in
mortgage may happen to be.
mediately enter on the lands; but is liable to be dispossessed
terpose; and, though a mortgage be thus forfeited, and the [ * 159 ] *estate absolutely vested in the mortgagee at the common
law, yet they will consider the real value of the tenements
(2) Hardr. 466.
(x) Litt. s. 332.
(13) See ante, p. 137, note.
(14) The policy of the statute of limitations of 32 Hen. VIII. c. 2, and of the more recent statute of 3 & 4
Gul. IV. c. 27, applies as strongly to
estate; paying to the mortgagee his principal, interest, and expenses : for otherwise, in strictness of law, an estate worth
there is a recognition of the mortga- being always the object of a court of gor's title: (Hodle v. Healey, 1 Ves. equity to make a complete decree, & Bea. 540 ; S. C. 6 Mad. 181 ; Grubb embracing the whole subject, and dev. Woodhouse, 2 Freem. 187:) but termining (as faras possible) the rights after a mortgagee has been in posses- of all the parties interested. (Palk v. sion twenty years, the mortgagor is Clinton, 12 Ves. 58; Cholmondeley v. barred ; unless in the mean time the Clinton, 2 Jac. & Walk. 134.) Upon mortgagee has given a written ac- analogous principles, not only the knowledgment of the title of the mort. mortgagor but a subsequent mort. gagor ; and in that case the mortgagor gagee, who comes to redeem the mortis barred unless he brings his suit gage of a prior mortgagee, must offer within twenty years after such ac. to redeem it entirely; although the knowledgment; at any rate unless his second mortgage may affect only part situation bring him within some of the of the estates comprised in the first, savings of the statute. (Marquis of and the titles are different. (Palk v. Cholmondeley v. Lord Clinton, 2 Jac. Clinton, 12 Ves. 59; Reynolds v. Lowe, & Walk. 180, et seq.; Whiting v. cited from Forrester's MS. in 1 Hoven. White, Coop. 4; S. C. 2 Cox, 300 ; den's Suppl. to Ves. junr. 280.) It Barren v. Martin, 19 Ves. 327.) To is true that Lord Hardwicke (in Ex show that an estate has been treated parte King, 1 Atk. 300,) intimated a as one affected by a subsisting mort- doubt whether it was an established gage, within twenty years immediately rule of the court, that a mortgagor preceding a bill brought for redemp- who has borrowed, from the same tion, parol evidence was formerly ad- party, money on the security of two missible. (Reeks v. Postlethwaite, estates, shall be compelled to redeem Coop. 170; Perry v. Marston, cited both, if he will have back either es2 Cox, 295; Edsell v. Buchanan, 2 tate : but it had previously been deVes. jun. 84.) But the late act ex- cided, that, in such cases, if one of cludes all proof except a written ac- the securities proves to be scanty, the knowledgment signed by the mortga- mortgagor, shall not be allowed to gee.
bring his bill for the redemption of In the case of Montgomery v. The the other mortgage only : (Purefoy, Marquis of Bath, (3 Ves. 560,) a de- v. Purefoy, 1 Vern. 29 ; Shuttleworth cree was made for a foreclosure as to
v. Laycock, 1 Vern. 245 ; Pope v. the share of one of several joint mort- Onslow, 2 Vern. 286 ;) and modern gagees : but, it is to be observed, no cases have confirmed the doctrine, that opposition was made by the mortgagor the mortgagee may insist on being in that case ; and it is very doubtful redeemed as to both his demands, or whether a decree for a partial fore- neither ; with this reasonable restricclosure ought ever to be made. (See tion, however, that a man who happens Cockburn v. Thompson, 16 Ves. 324, to be engaged with another in one n.) It is, at all events, certain, there mortgage only, may redeem the same, can be no foreclosure or redemption, though the other person concerned unless the whole of the parties entitled therein has also pledged another estate. to any share of the mortgage money (Jones v. Smith, 2 Ves. junr. 376 ; are before the court: (Lowe v. Mor- Cator v. Charlton, and Collett v. Mungan, 1 Br. 368 ; Palmer v. The Earl den, cited 2 Ves. junr. 377.) of Carlisle, 1 Sim. & Stu. 425 :) it
10001. might be forfeited for non-payment of 1007. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption : and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately: or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall.
And also, in some cases of fraudulent mortgages (a), the fraudulent mortgagor forfeits all equity of redemption whatsoever (15). It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment (16), and take the land into
(a) Stat. 4 & 5 W. & M. c. 16.
(15) By the statute of 4 & 5 W. & that a mortgage thus made irredeemM.c. 16, it is enacted, that, if a debtor able by the mortgagor, shall be alike upon judgment, statute, or recogni- irredeemable by him, whether the eszance, takes up money from another tate remains in the hands of the first lender upon mortgage, without giving mortgagee, or of his assignee, or of a him notice of such former incum- subsequent mortgagee, who has rebrance, in writing under the debtor's deemed the prior mortgage. (Stafford hand, before the execution of the v. Selby, 2 Vern. 590.) mortgage, all equity of redemption (16) Mr. Christian, in his note upon shall be lost, unless such mortgagor, this passage of the text, observes that upon notice in writing, under the hand “the mortgagee is not now obliged to and seal of the mortgagee, attested by bring an ejectment to recover the rents two or more witnesses, of any such and profits of the estate ; for it has former incumbrance, shall within six been determined, that, where there is months discharge the same. And any a tenant in possession, by a lease prior person mortgaging the same lands, or to the mortgage, the mortgagee may any part thereof, more than once, at
any time give him notice to pay
the without notice to the subsequent mort- rent to him; and he may distrain for gagees of the prior mortgage or mort. all the rent which is due at the time gages, in writing under the hand of of the notice, and also for all that acthe mortgagor, shall lose all equity of crues afterwards. (Moss v. Gallimore, redemption ; butany subsequent mort. Doug. 266.) The mortgagor has no gagee may redeem a former mortgage. interest in the premises, but by the Upon this statute it has been resolved, mere indulgence of the mortgagee; he
his own hands (17) in the nature of a pledge, or the pignus of the Roman law, whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtor (b). But, by the statute 7 Geo. II. c. 20, after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities. In Glanvil's time, when the universal method of conveyance was by livery of seisin *or corporal tradition of the lands, no [ * 160 ] gage or pledge of lands was good unless possession was also delivered to the creditor; “si non sequatur ipsius “ vadii traditio, curia domini regis hujusmodi privatas con
, “ ventiones tueri non solet :” for which the reason given is, to prevent subsequent and fraudulent pledges of the same land : “cum in tali casu possit eadem res pluribus aliis “ creditoribus tum prius tum posterius invadiari" (c). And the frauds which have arisen, since the exchange of these
has not even the estate of a tenant at with his other creditors ; (Chapman will, for it is held he may be prevented v. Tanner, 1 Vern. 267 ;) he will be from carrying away the emblements, charged with the rent he might have or the crops which he himself has received : as he will, at the suit of sown. Ib.
other creditors, when, after entry, he “ If the mortgagor grants a lease has allowed the mortgagor to continue after the mortgage, the mortgagee may in receipt of the profits : (Coppring recover the possession of the premises v. Cooke, i Vern. 270; Maddocks v. in an ejectment against the tenant in Wren, 2 Cha. Rep. 209 ;) or, at least, possession without a previous notice if not charged with the whole rents, to quit, 3 East, 449.” [See also Keech he will be deprived of his right to v. Hall, Dougl. 21, and Alchorne v. charge interest against the estate, so Gomme, Bing. 62, 9 J. B. Moore, as to delay a subsequent mortgagee. 130.-Ed.]
(Bentham v. Haincourt, Prec. in Cha. (17) If a mortgagee, after recover- 30; Loftus v. Swift, 2 Sch. & Lef. ing in ejectment, refuses to enter, 656.) A mortgagee, entering, is to either through collusion with the ten- take the fair rents and profits. He is ant, and to the detriment of the morta not bound to engage in adventures and gagor; (Duke of Buckingham v. Gay- speculations for the benefit of the ner, 1 Vern. 258 ;) or, vice versá, by mortgagor ; and if he do so speculate, collusion with the mortgagor, thereby it must be at his own hazard, should enabling him to take the profits, yet, loss ensue. (Hughes v. Williams, 12 by means of the mortgage, to fence Ves. 496.)
public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law (18) (19).
(18) Mr. Christian observes, that to whose charge on the estate posses“ where an estate is divided, it is im- sion of the title deeds is not a necespossible for every one who has a share sary incident, cannot be postponed to to have the title deeds ; in a sale, subsequent incumbrancers, because he therefore, under an order of the Court is not in possession of the title deeds. of Chancery, the chancellor directs (Harper v. Faulder, 4 Mad. 138 ; one to retain the title deeds, but to Tourle v. Rand, 2 Br. 652.) covenant to produce them when called Among mortgagees, where none of upon, to support the title of the other them have the legal estate, the rule in purchasers."
equity is, that, qui prior est tempore (19) An experiment made in the potior est jure; and the several incounties of York and Middlesex, to cumbrances must be paid according to counteract, by registration, the incon- their priority in point of time. (Brace veniences alluded to in the text, is v. Duchess of Marlborough, 2 P. Wms. mentioned by our author (at the close 495 ; Clarke v. Abbot, Bernard. Ch. of the 20th chapter of this volume, p. Rep. 460 ; Earl of Pomfret v. Lord 343,) as one of very doubtful utility Windsor, 2 Ves. sen. 486 ; Maun. in practice, however plausible in drell v. Maundrell, 10 Ves. 260; Macktheory: but, the opinion of the pub- reth v. Symmons, 15 Ves. 354.) But lic, it is believed, is becoming favour- when, of several persons having equal able to a general registration, as a equity in their favour, one has been measure of practical advantage. The fortunate, or prudent, enough to get details, no doubt, will require cautious in the legal estate ; he may make all consideration.
the advantage thereof which the law If a mortgagee neglect to take pos- admits, and thus protect his title, session of, or if he part with, the title though subsequent in point of time to deeds of the mortgaged property, with that of other claimants; courts of a view to enable the mortgagor to com- equity will not interfere in such cases, mit frauds upon
third persons ;
he will but leave the law to prevail. In conbe postponed to incumbrancers who formity to this settled doctrine, if an have been deceived, and induced to estate be encumbered with several advance money, by his collusion with mortgage debts, the last mortgagee, the mortgagor: but the mere circum- provided he lent his money bona fide stance of not taking, or keeping, pos- and without notice, may, by taking in session of the title deeds, is not, of the first incumbrance, carrying with itself, a sufficient ground for post- it the legal estate, protect himself poning the first mortgagee ; unless against any intermediate mortgage : there be fraud, concealment, or some no mesne mortgagee can take the essuch purpose, or concurrence in such tate out of his hands, without redeempurpose ; or that gross negligence ing the last incumbrance as well as the which amounts to evidence of a fraud- first. (Wortley v. Birkhead, 2 Ves. ulent intention : (Evans v. Bicknell, sen. 573 ; Morret v. Paske, 2 Atk. 6 Ves. 190 ; Martinez v. Cooper, 2 53; Frere v. Moore, 8 Pr. 487 ; BarRuss. 216 ; Barnettv. Weston, 12 Ves. nett v. Weston, 12 V’es. 135.) But, 133; Bailey v. Fermor, 9 Pr. 267; to support the doctrine of tacking, the Peter v. Russell, Gilb. Eq. Rep. 123:) fairness of the circumstances under and, of course, a prior incumbrancer, which the loan desired to be tacked